Understanding International Law

Transcription

1 University of the Pacific Scholarly Commons McGeorge School of Law Teaching Materials McGeorge School of Law Faculty Scholarship 2015 Understanding International Law Stephen C. McCaffrey Pacific McGeorge School of Law Follow this and additional works at: Part of the International Law Commons Recommended Citation McCaffrey, Stephen C., "Understanding International Law" (2015). McGeorge School of Law Teaching Materials This Book is brought to you for free and open access by the McGeorge School of Law Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in McGeorge School of Law Teaching Materials by an authorized administrator of Scholarly Commons. For more information, please contact

2 UNDERSTANDING INTERNATIONAL LAW Second Edition

3 LexisNexis Law School Publishing Advisory Board Bridgette Carr Clinical Professor of Law University of Michigan Law School Steven I. Friedland Professor of Law and Senior Scholar Elon University School of Law Carole Goldberg Jonathan D. Varat Distinguished Professor of Law UCLA School of Law Oliver Goodenough Professor of Law Vermont Law School Paul Marcus Haynes Professor of Law William and Mary Law School John Sprankling Distinguished Professor of Law McGeorge School of Law

4 UNDERSTANDING INTERNATIONAL LAW Second Edition Stephen C. McCaffrey Distinguished Professor of Law University of the Pacific McGeorge School of Law

5 ISBN: ebook ISBN: Library of Congress Cataloging-in-Publication Data McCaffrey, Stephen C. Understanding international law / Stephen C. McCaffrey, Distinguished Professor of Law, University of the Pacific McGeorge School of Law. -- Second edition. pages cm Includes index. ISBN (softbound) 1. International law. I. Title. KZ3410.M dc This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2015 Matthew Bender & Company, Inc., a member of LexisNexis. All Rights Reserved. No copyright is claimed by LexisNexis or Matthew Bender & Company, Inc., in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) Editorial Offices 630 Central Ave., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2015 Pub.3122)

6 The Author Stephen McCaffrey teaches International Law at the University of the Pacific, McGeorge School of Law. He was a member of the U.N. International Law Commission (ILC) for 10 years ( ), chaired the Commission s Thirty-Ninth Session ( ) and was special rapporteur for the ILC s work on the Law of the Non- Navigational Uses of International Watercourses ( ). He has served as Counselor on International Law in the State Department, as counsel in a number of cases before the International Court of Justice and international arbitral tribunals, and regularly advises governments and international organizations. iii

7

8 Preface As with the first edition, this book is intended for the newcomer to international law whether law student, lawyer or judge, layperson or undergraduate not the specialist. It attempts to explain in plain English what international law is, why it exists, and the basic subjects it covers. In this sense the title of the book is, I hope, appropriate. The book deals with the law governing the relations between the countries of the world. This body of law has developed over the centuries through the practice of states, as countries are called in the parlance of international law. States treat this law as having binding force. They benefit from it, and expect other states to follow it. This is even true when the benefit of a rule is indirect, or enjoyed by the international community as a whole, as in the case of the rule prohibiting genocide and other rules protecting human rights. As I tell my students, international law is similar to domestic law in the broad scope of its coverage: there are international-law counterparts to most of the domestic-law subjects studied in law school. It is thus difficult to do the subject justice within the compass of a three-hour course or a small volume such as this one. I have attempted to address this issue by focusing in the present volume on how law is made and functions in the international community, and on the basic subjects of international law. An understanding of these matters should equip the reader to delve into other areas of interest in the field. While emphasizing these basic issues and subjects, the book attempts to at least touch upon topics of current relevance, such as terrorism, international criminal law, the use and applicability of international law in United States courts, and the law governing the use of military force. This coverage is intended as an introduction only; the interested reader is encouraged to pursue sources discussing these issues in greater depth. The Law of Treaties is given particular attention, chiefly because of the increasing importance of the treaty in international life. The number of treaties has mushroomed since the Second World War and many of these agreements include over 100 states as parties. Because of their number and the breadth of their coverage, treaties are thus the main form of international legislation. But since they are also contractual in character, and since many multilateral treaties allow states to place conditions on their acceptance of them, the law governing treaties is necessarily more complex than if they were the exact equivalent of national legislation. This second edition comprehensively updates all of the book s chapters and adds new text where appropriate. I hope the book will prove helpful in understanding international law, and I welcome readers comments on it. Stephen C. McCaffrey July, 2014 v

9

10 Acknowledgments I have been helped greatly in preparing this book by many people. First, I have received valuable assistance with this edition from two doctoral students, Idowu Adetogun and Maria Milanes-Murcia. A number of research assistants, including Mirwais Haider (Pacific McGeorge 15), have worked cheerfully and tirelessly on both editions in finding sources, chasing down citations, proofreading text and footnotes, preparing tables and making valuable suggestions for the improvement of the work. Second, the Reference Librarians at Pacific McGeorge s Gordon D. Schaber Law Library, particularly Paul Howard, have also been of great assistance, especially in locating obscure and hard-to-find sources. Third, the University of the Pacific, McGeorge School of Law has provided summer research grants throughout the duration of the project. And finally, I could never have completed the work without the unstinting support of my wife, Susan, who is a constant source of inspiration. For all of this help, I am deeply grateful. vii

11

12 Glossary The following are explanations of certain terms that one often encounters in international law. They are offered for the assistance of the reader and are not intended to be precise definitions or translations. erga omnes toward all; obligations erga omnes are those owed to all. jus ad bellum the rules of international law concerning the right to go to war or to use force. jus cogens a peremptory norm of general, or customary, international law. lex ferenda (or de lege ferenda) law as it ought to be; law in the process of formation. jus in bello the law applicable during armed conflict. lex specialis (or generalia specialibus non derogant) a principle of inter-pretation according to which a specific law or provision prevails over a general one. lex lata law as it is; positive law. pacta sunt servanda treaties are binding on the parties and must be performed in good faith. municipal law national or domestic law. pacta tertiis nec nocent nec prosunt or simply pacta tertiis a treaty creates neither rights nor obligations for a third state (i.e., a state that is not a party to the treaty) without its consent. travaux préparatoires preparatory work; legislative history relating to a treaty. uti possidetis iuris the principle that colonial boundaries will not be disturbed after former colonies achieve independence. ix

13

14 Table of Treaties and Other International Instruments Name of Instrument Section Location Abolition of Forced Labor Convention 9.02 African Charter on Human and People s 9.03 Rights Agreement Between the United States and 2.03, 4.07[F], the United Nations Regarding the Headquarters of the United Nations American Declaration of the rights and 9.01 [A], 9.03 Duties of Man Antarctic Treaty of [B][2][e] Charter of Economic Rights and Duties of 3.03 [B][1], 9.01[B] States Charter of the United Nations 1.01, 2.01[A][1], 3.01, 3.03, 3.03[A], 3.03 [B][1], 3.03[D], 4.02, 4.05[A], 4.05[C][3], 4.05[C][4][a], 4.05[D], 4.05[E], 4.07[F], 5.02[B][2], 5.02[D], 5.03[B], 5.03[C][1][a][iii], 7.01, 8.01[A], 8.02, 8.03, 8.04, 9.01[A], 9.02, 10.02, Comprehensive Nuclear-Test-Ban Treaty 4.05[C][4][a] Convention Against Torture and Other 9.01[C], 9.02 Cruel, Inhuman, or Degrading Treatment or Punishment Convention Between the Government of 6.03[C] the United States of America and the Government of the United Kingdom for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital Gains Convention Between the United States and 4.07[C][1] Great Britain (for Canada) for the Protection of Migratory Birds Convention Concerning the Protection of 7.05 the World Cultural and Natural Heritage Convention on International Trade in Endangered Species 4.05[D] Convention on the Elimination of All 9.02 Forms of Discrimination Against Women Convention on the Prevention and Punishment of the Crime of Genocide 4.05[B][2][a], 4.05[B][2][c], 9.01[A] Convention on the Privileges and Immunities of the Specialized Agencies 5.03[B] Convention on the Privileges and Immunities of the United Nations 5.03[B] Convention on the Settlement of Investment Disputes between States and Nation- 5.03[C][2] als of Other States xi

15 Table of Treaties Name of Instrument Convention on the Suppression and Punishment of the Crime of Apartheid Convention Relating to the Status of Refugees Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance Covenant of the League of Nations Draft Code of Offences against the Peace and Security of Mankind (1954) Draft Code of Crimes against the Peace and Security of Mankind (1996) Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples Eurocontrol Convention European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment European Convention for the Protection of Human Rights and Fundamental Freedoms European Convention on State Immunity European Union Treaty Friendship, Commerce and Navigation (FCN) Treaty Between the United States and Japan G.A. Res. 1803, Permanent Sovereignty Over Natural Resources General Agreement on Tariffs and Trade Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (1864) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949) Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949) Geneva Convention on the Continental Shelf Geneva Convention Relative to the Treatment of Civilian Persons in Time of War (1949) Section Location 6.03[E] [E] 1.04, 4.05[C][4], 5.02[D], 8.01[A] 5.03[C][1][a][ii] 5.03[C][1][a][ii] 3.03[B][1], 5.02[D], [D] 4.05[C][4][c] 4.05[B][2][d] 4.05[B][2][d], 9.01[A], [B] 4.05[B][2][e] [B] 4.02, 4.05[C][3] 9.01[C] 9.01[C] 9.01[C] [C][1][b], 9.01[C] xii

16 Table of Treaties Name of Instrument Section Location Geneva Convention Relative to the Treatment of Prisoners of War (1949) 5.03[C][1][b], 9.01[C] Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and 7.04, 9.01[C] Relating to the Protection of Victims of International Armed Conflicts (1977) Geneva Protocol II Additional to the Geneva Conventions of August 12, 1949, and 9.01[C] Relating to the Protection of Victims of Non-International Armed Conflicts (1977) Hague Convention for the Pacific Settlement of International Disputes (1899) Hague Convention (I) for the Pacific Settlement of International Disputes (1907) 4.05[C][5], Helsinki Convention on the Protection and 4.05[B][1][c] Use of Transboundary Watercourses and International Lakes Hull-Lothian Agreement 4.02, 4.03 Hungary-Slovakia Treaty (1977) 4.05 [E][2], 5.02[C] ILA Montreal Draft Convention on State 6.04[B] Immunity ILC Draft Articles on Responsibility of 4.06, 7.01, 7.02[A], 7.02[B], 7.03[A], States for Internationally Wrongful Acts 7.03[B], 7.04, 7.05, 9.01[B] International Covenant on Civil and Political Rights 9.02[A][2] 2.05, 5.02[D], 5.03[C][1][a][iii], 9.02, International Covenant on Economic, Social and Cultural Rights 9.02[A][3] 5.02[D], 5.03[C][1][a][iii], 9.01[B], 9.02, International Convention for the Unification 6.04[B] of Certain Rules relating to the Immunity of State-owned Vessels International Convention on the Elimination of All Forms of Racial Discrimination 9.02 International Convention on the Suppression of Acts of Nuclear Terrorism 6.03[E] Kellogg-Briand Pact 4.02, 8.01[A] Montevideo Convention 5.02[B][1] Montreal Protocol on Substances that Deplete the Ozone Layer 7.05 North American Free Trade Agreement 4.05[B][2][e] (NAFTA) North American Agreement on Environmental Cooperation 7.05 Peace of Westphalia Rome Statute of the 4.02, 4.05[B][2][d], 4.05[C][4][a], International Criminal Court 5.03[C][1][a][ii], 5.03[C][2], 7.01 Roosevelt-Litvinov agreement 4.07[C][2][c] Statute of the International Court of Justice 2.01[B], 3.01, 3.03, 3.03[C], 3.03[D][1], 3.03[E][2], xiii

17 Table of Treaties Name of Instrument Section Location Statute of the International Law Commission 3.03[A], 3.03[D][1] Statute of the International Tribunal for 5.03[C][1][a][ii], 5.03[C][2], 7.01 Rwanda Statute of the International Tribunal for the 5.03[C][1][a][ii], 5.03[C][2], 7.01 Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Insti tutions and Practices Similar to Slavery The Cession of Alaska 4.02, 4.03 Treaty between the Jews and the Romans 4.02 Treaty of Peace between Israel and Jordan 4.05[C][4][c] Treaty on the Reduction and Limitation of 4.05[C][4][a] Strategic Offensive Arms UK-US Supplementary Extradition Treaty 4.05[B][2][c] United Nations Convention on Biological 3.03[A], 7.05 Diversity United Nations Convention on Jurisdictional Immunities of States and Their Prop- 6.04[B], 6.04[C][2], 6.04[C][3] erty United Nations Convention on the Law of 3.03[B][2], 4.05[B][1][c] the Non-Navigational Uses of International Watercourses United Nations Convention on the Law of 4.05[B][2][d], 6.03[C] the Sea (1982) United Nations Convention on the Rights 4.05[B][2][d], 9.02 of the Child United Nations Framework Convention on 7.05 Climate Change United Nations Standard Minimum Rules 9.01[D] for the Treatment of Prisoners Universal Declaration of Human Rights 5.03[C][1][a][iii], 9.01[A], 9.01[B], 9.02[A][1] Vienna Convention on Consular Relations 1.02[C], 2.01[A][1], 2.05, 6.04[A] Vienna Convention on Diplomatic Relations 3.03[A], 4.02, 6.03[B][1], 6.04[A], 7.02[A] Vienna Convention on the Law of Treaties 2.02, 3.03[A], 3.03[B][2], 3.03[C], 3.03[E][1], 4.04, 4.05, 4.06, 4.07[A], 4.07[B], 5.03[B], 8.04[B], 9.03 Vienna Convention on the Law of Treaties 4.05 Between States and International Organizations or Between International Organizations xiv

18 Table of Treaties Name of Instrument Vienna Convention on Succession of States in Respect of State Property, Archives and Debts Vienna Convention on Succession of States in Respect of Treaties Section Location 5.02[C] 3.03[B][2], 5.02[C] xv

19

20 Table of Contents Chapter 1 WHAT IS INTERNATIONAL LAW? INTRODUCTION GENERAL DEFINITION [A] International Law [B] Public vs. Private International Law [C] The Blurring of Distinctions IS INTERNATIONAL LAW LAW? A BIT OF HISTORY Chapter 2 HOW DOES INTERNATIONAL LAW RELATE TO NATIONAL ( MUNICIPAL ) LAW? INTRODUCTION INTERNATIONAL LAW IN NATIONAL LAW [A] The Applicability of International Law in National Law [1] Introduction [2] Illustration: The Vienna Convention on Consular Relations in U.S. Courts [3] Other Illustrations [4] Self-Executing Treaties [B] The Use of International and Comparative Law to Inform National Court Decisions NATIONAL LAW IN INTERNATIONAL LAW MONISM VS. DUALISM INTERNATIONAL LAW AS LAW OF THE UNITED STATES THE EFFECT OF ACTIONS OF THE PRESIDENT OR CONGRESS THAT VIOLATE INTERNATIONAL LAW Chapter 3 THE SOURCES OF INTERNATIONAL LAW INTRODUCTION WHAT GIVES THE SOURCES OF INTERNATIONAL LAW LEGAL FORCE? ARTICLE 38 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE [A] Treaties [B] Customary International Law [1] A General Practice [2] Accepted as Law [3] Recent Challenges to Custom as a Source of Law xvii

21 Table of Contents [C] General Principles of National Law [D] Subsidiary Means : Judicial Decisions and Writings [1] Courts and Tribunals [2] Publicists [E] Decisions ex aequo et bono [1] The Unutilized Power [2] Equity Distinguished Chapter 4 THE LAW OF TREATIES INTRODUCTION TREATIES AS INTERNATIONAL LEGISLATION TREATIES AS INTERNATIONAL CONTRACTS TREATIES AND CUSTOMARY INTERNATIONAL LAW THE VIENNA CONVENTION ON THE LAW OF TREATIES [A] What Is a Treaty? [B] The Making of Treaties [1] General [a] Overview of the Treaty-Making Process [b] Obligations Prior to Entry into Force [c] Consent to Be Bound [2] Reservations [a] Multilateral Treaties [b] Bilateral Treaties [c] Reservation Defined [d] Permissibility of Reservations [e] Acceptance of and Objection to Reservations [C] The Legal Effect and Interpretation of Treaties [1] Pacta Sunt Servanda [2] Non-retroactivity and Territorial Scope [3] Successive Treaties Relating to the Same Subject Matter [4] Interpretation [a] The General Rule [b] Supplementary Means of Interpretation [c] Treaties in More than One Language [5] Treaties and Third States [D] Amendment and Modification of Treaties [E] Invalidity and Termination of Treaties [1] Invalidity [a] Lack of Competence [b] Error [c] Fraud xviii

22 Table of Contents [d] Corruption [e] Coercion [f] Jus Cogens [2] Termination [a] Material Breach [b] Impossibility [c] Fundamental Change of Circumstances [d] Jus Cogens THE RELATIONSHIP BETWEEN TREATIES AND STATE RESPONSIBILITY THE LAW OF TREATIES AND UNITED STATES LAW [A] The Position of the United States on the Vienna Convention [B] The Meaning of the Term Treaty in U.S. Domestic Law [C] Authority to Make International Agreements Under U.S. Law [1] Article II Treaties [2] Executive Agreements [a] Congressional-Executive Agreements [b] Agreements Made Pursuant to Other Treaties [c] Sole Executive Agreements [D] Authority to Interpret Treaties and Other International Agreements Under U.S. Law [E] Authority to Suspend or Terminate Treaties and Other International Agreements under U.S. Law [F] Conflict between Treaty and Federal Statute: The Last-in-Time Rule Chapter 5 TO WHOM IS INTERNATIONAL LAW ADDRESSED? STATES AND OTHER SUBJECTS OF INTERNATIONAL LAW INTRODUCTION STATES [A] Statehood: Objective Requirements [1] Permanent Population [2] Defined Territory [3] Government [4] Capacity to Enter into Relations with Other States [5] Summation [B] Recognition of States and Governments [1] Recognition of States [2] Recognition of Governments [C] State Succession [D] Self-Determination xix

23 Table of Contents 5.03 OTHER SUBJECTS OF INTERNATIONAL LAW [A] Territorial Entities Other than States [B] International Organizations [C] Natural and Legal Persons [1] Natural Persons [a] Individuals [i] The Individual as an Object of International Law [ii] The Individual as a Subject of International Law [iii] International Human Rights Law [iv] Terrorists and Terrorism [b] Peoples [2] Legal Persons Chapter 6 THE ALLOCATION OF COMPETENCE AMONG STATES: JURISDICTION INTRODUCTION JURISDICTION OF STATES: GENERAL CONSIDERATIONS BASES OF STATE JURISDICTION [A] Introduction [B] Territoriality and the Effects Principle [1] Conduct and Other Matters Within a State s Territory [2] Effects Within a State s Territory [C] Nationality [D] The Protective Principle [E] The Universality Principle [F] Other Possible Bases IMMUNITY FROM JURISDICTION [A] Introduction [B] Historical Development [C] The United States Foreign Sovereign Immunities Act of [1] Introduction [2] The Commercial Activities Exception [3] The Non-Commercial Tort Exception [4] Enforcement of Judgments THE ACT OF STATE DOCTRINE Chapter 7 REMEDIES: INTERNATIONAL RESPONSIBILITY INTRODUCTION GENERAL PRINCIPLES [A] Attribution [B] Defenses Circumstances Precluding Wrongfulness xx

24 Table of Contents 7.03 OBLIGATIONS OF THE WRONGDOING STATE [A] Introduction [B] Reparation [1] Restitution [2] Compensation [3] Satisfaction COUNTERMEASURES ALTERNATIVES TO THE TRADITIONAL APPROACH: ACCOUNTABILITY AND COMPLIANCE Chapter 8 THE USE OF FORCE BY STATES INTRODUCTION [A] Historical Development [B] This Chapter THE BASIC PROHIBITION: ARTICLE 2(4) SELF-DEFENSE: ARTICLE COLLECTIVE USE OF FORCE [A] Collective Self-Defense [B] Action Under the Authority of the Security Council [C] Regional Arrangements Chapter 9 INTERNATIONAL HUMAN RIGHTS LAW INTRODUCTION [A] Background [B] State Responsibility for Injuries to Aliens [C] International Humanitarian Law [D] This Chapter THE UNIVERSAL SYSTEM [A] The International Bill of Human Rights [1] The Universal Declaration [2] The Civil and Political Covenant [3] The Economic, Social, and Cultural Covenant [4] Compliance Mechanisms [a] United Nations and Treaty-Based Systems [b] Enforcement of Human Rights Law in Domestic and International Tribunals [B] Customary International Human Rights Law REGIONAL SYSTEMS xxi

25 Table of Contents Chapter 10 THE SETTLEMENT OF DISPUTES BETWEEN STATES INTRODUCTION THE BASIC OBLIGATION: PEACEFUL SETTLEMENT FORMS OF DISPUTE SETTLEMENT THE INTERNATIONAL COURT OF JUSTICE [A] General [B] Jurisdiction [C] The Effect of the Court s Judgments and Orders Table of Cases TC-1 Index I-1 xxii